21 Wend. 552 | N.Y. Sup. Ct. | 1839
By the Court,
Our statute, 1 R. S. 675, § 70, after specifically forbidding several acts and exercisés on Sunday, adds, “ nor shall there be any servile laboring or working on that day,” <fcc., and annexes a fine of one dollar for each offence. The 73d section, p. 676, provides that whenever complaint' shall be made to any justice, &c., of a violation of the statute, he shall cause the offender to be brought before him, and shall proceed summarily to inquire into the facts, &c., and the conviction shall be final and not the subject of re-examination upon the merits. By the 2 R.S. 706, § 2, whenever any complaint shall be made to a magistrate of a criminal offence, it shall be his duty to examine oh oath the complainant, &c. And by § 3, if it shall appearfrom such examination that any criminal.offence has been committed, the magistrate shall issue a proper warrant under his hand, with or without seal,.redting the accusation,
Great stress was laid on the insufficiency of the recitals in the complaint and warrant. As to the former it was not necessary that it should be put in writing; an oral examina
If we are right in the conclusion respecting the justice, it necessarily follows that the warrant was a protection to the officer ■ for if there. was matter enough to justify the proceeding of the justice, it would of course .justify the officer. Indeed, if there had been -no -recital of the pffence in. the warrant; the constable would have been protected $ for to subject him to responsibility in this action, it must, be shown not merely that the magistrate had no jurisdiction to issue the process, hut that it so appeared on the face of the process. ' The judge, was also right in excluding 'the evidence of the abuse of the plaintiff in the arrest, - and whilst the officer was •carrying the plaintiff before the magistrate. This was 'taking grdurid to sustain the action against the officer- in respect to which the justice was- in no way implicated. Assuming what We are disposed to hold in the case, that the process afforded a justification to both justice and officer for the arrest, the only .-object or legal effect of this evidence was to charge the latter for abuse in the execution of the process’ I admit, if the plaintiff had elected td discharge the justice, he might have entitled himself to the evidence, and possibly have sustained the action; but 'as the casé
Though I regret that the officer cannot be reached in this •action for his abusive conduct towards the plaintiff, 1 am ■satisfied the case was disposed of at the circuit upon settled principles of law*.
New trial denied.